Kerala High Court
P.M.Joy vs Unknown on 17 January, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
RFA.No.541 OF 2019
AGAINST THE JUDGMENT AND DECREE IN OS 42/2003 DATED 26-11-2019 OF
I ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANT/3RD DEFENDANT:
P.M.JOY
AGED 62 YEARS
S/O. MANI, PADINJAREKUDILIL HOUSE, KOKKAPPILLY KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM
DISTRICT.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND
SRI.T.RAMPRASAD UNNI
RESPONDENTS/PLAINTIFFS 1 &2, DEFENDANTS 1,2&4 TO 8, 10 TO 18,21
& 23:
1 P.V.JOHNY, AGED 59 YEARS,
S/O. VARGHESE, OOMELLIL HOUSE, KOKKAPPILLYKARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682305.
2 N.V GEORGE,
AGED 60 YEARS, SON OF VARGHESE, NADUVELAPARAMBIL
HOUSE, KOKKAPPILLYKARA, THIRUVANIYOOR VILLAGE,
KUNNATHUNADU TALUK, PIN-682305.
3 ST. JOHN'S ORTHODOX SYRIAN CHURCH,
KANNIYATTUNIRAPPU, KUZHIYARAKARA, PIN-682312,
THIRUVANIYOOR VILLAGE, REPRESENTED BY ITS VICAR.
4 M.V GEORGE,
AGED 72 YEARS, SON OF VARKEY, MUREEKKAL HOUSE,
THALAKODEKARA, KANAYANNUR VILLAGE, KANAYANNUR TALUK,
PIN-682314.
RFA.Nos.541 & 545 OF 2019 2
5 FR. JOHN MOOLAMATTOM,
AGED 53 YEARS, SON OF FR. KURIAKOSE, VICAR, ST
JOHN'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU,
KUZHIYARAKARA, THIRUVANIYOOR VILLAGE, PIN-682312.
6 K.P. VARGHESE,
AGED 75 YEARS, S/O. PATRHOSE, KATTARATHUMALIL
HOUSE, KOKKAPPILLYKARA, THIRUVANIYOOR VILLAGE,
KUNNATHUNADU TALUK, PIN-682305.
7 M.Y. SAJU,
AGED 53, SON OF YOHANNAN, ADVOCATE, MALLECKAL
HOUSE, KOKKAPPILLYKARA, THIRUVANIYOOR VILLAGE,
MANAGER, ST.JOHN'S HIGH SCHOOL, KANNIYATTUNIRAPPU.
8 REJI N.K.
AGED 53 YEARS, NADUMOLAYIL HOUSE, KUZHIYARAKARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,
SECRETARY, ST.JOHN'S HOSPITAL, KANNIYATTUNIRAPPU.
9 JOY,
AGED 56, SON OF KOCHUKUNJU, CHELACHUVATTIL,
THIRUVANIYOORKARA, THIRUVANIYOOR VILLAGE.
10 YACOB,
AGED 51, SON OF KUNJAPPAN, KEELATH,
THIRUVANIYOORKARA, THIRUVANIYOOR
VILLAGE,KUNNATHUNADU TALUK, PIN-682308.
11 BENNY PAUL,
AGED 46 YEARS, SON OF PAILY, PATTULLIL,
THIRUVANIYOORKARA, THIRUVANIYOOR
VILLAGE.,KUNNATHUNADU TALUK, PIN-682308.
12 P.V. KURIACHAN,
AGED 74 YEARS, S/O. VARKEY,
PUTHENVEETTIL, THIRUVANIYOORKARA, THIRUVANIYOOR
VILLAGE.,KUNNATHUNADU TALUK, PIN-682308.
13 K.T. PAULOSE,
AGED 61 YEARS, S/O. THOMMAN, KOLLAMKULATHIL,
KIDANGAYAMKARA, KANAYANNUR VILLAGE, KANAYANNUR
TALUK, PIN-682312.
14 C.A.THANKACHAN,
AGED 54 YEARS, SON OF ABRAHAM, CHIRAPPATTU,
KIDANGAYAMKARA, KANAYANNUR VILLAGE, KANAYANNUR
TALUK, PIN-682312.
15 BABU,
RFA.Nos.541 & 545 OF 2019 3
AGED 51, SON OF VARGHESE, CHIRAPPATTU,
KIDANGAYAMKARA,KANAYANNUR VILLAGE,KANAYANNUR TALUK,
PIN-682312.
16 V.M. PAULOSE,
AGED 66, SON OF MATHEW, VAZHAKALAYIL, KANAYANNUR
VILLAGE AND TALUK, PIN-682313.
17 ELIAS,
AGED 44 YEARS, SON OF PAPPY, PARAKULANGARA,
KIDANGAYAM, PIN-682312, KANAYANNUR VILLAGE,
KANAYANNUR TALUK, PIN-682312.
18 GEEVARGHESE,
AGED 68 YEARS, SON OF YACOB, KOKKATTU,
KUZHIYARAKARA, PIN-682312, THIRUVANIYOOR VILLAGE,
KUNNATHUNADU TALUK.
19 T.P. WILSON,
AGED 46, SON OF PAILY, THACHETH, KOKKAPPILLY KARA,
PIN-682305, THIRUVANIYOOR VILLAGE, KUNNATHUNADU
TALUK.
20 JOHN N.V.,
AGED 44 YEARS, SON OF VARKEY KURAKO, NEDUMOLAYIL
HOUSE, KANNIYATUNIRAPPU, KUZHIYARA P O, PIN-682312,
ERNAKULAM DISTRICT,
(PLAINTIFF NO.3, DEFENDANTS 9,19, 20 AND 22 DIED
DURING THE PROCEEDINGS BEFORE THE COURT BELOW).
R3, R5 BY ADV. SRI.S.SREEKUMAR (SR.)
R3, R5 BY ADV. SRI.P.MARTIN JOSE
R3, R5 BY ADV. SRI.P.PRIJITH
R3, R5 BY ADV. SRI.THOMAS P.KURUVILLA
R3, R5 BY ADV. SMT.HANI P.NAIR
R3, R5 BY ADV. SRI.AJAY BEN JOSE
R3, R5 BY ADV. SRI.MANJUNATH MENON
R3, R5 BY ADV. SHRI.HARIKRISHNAN S.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
17.01.2020, ALONG WITH RFA.545/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RFA.Nos.541 & 545 OF 2019 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
RFA.No.545 OF 2019
AGAINST THE JUDGMENT AND DECREE IN OS 42/2003 DATED 26.11.2019
OF I ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANT/DEFENDANT NO.13:
K.T.PAULOSE
AGED 61 YEARS
S/O.THOMMAN, KOLLAMKULATHIL, KIDAMAGAYAM KARA,
KANAYANNUR VILLAGE, ERNAKULAM DISTRICT, PIN-682312
BY ADVS.
SRI.P.VISWANATHAN (SR.)
SRI.ACHUTH KYLAS
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
SHRI.AMAL DEV C.V.
SMT.SREEDEVI KYLASANATH
RESPONDENTS/PLAINTIFFS 1&2/DEENDANTS NO.1 TO 8&10 TO 18 & 21 &
Additional Defendant No.23:
1 P.V.JOHNY,
AGED 59 YEARS,
S/O.VARGHESE, OOMELIL HOUSE, KOKKAPPILLY KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN-682312
2 N.V.GEORGE,
AGED 63 YEARS,
S/O.VARGHESE, NADUVELAPARAMBIL HOUSE, KOKKAPPILLY
KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,
PIN-682312
3 ST.JOHN'S ORTHODOX SYRIAN CHURCH,
KANNIYATTUNIRAPPU, KUZHIYARA KARA, THIRUVANIYOOR
VILLAGE,REPRESENTED BY ITS VICAR PIN-682312
4 M.V.GEORGE,
AGED 72 YEARS,
S/O.VARKEY, MUREEKKAL HOUSE, THALAKODE KARA,
RFA.Nos.541 & 545 OF 2019 5
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682305
5 P.M.JOY,
AGED 60 YEARS,
S/O.MANI, PADINJAREKUDIYIL HOUSE, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682312
6 FR.JOHN MOOLAMATTOM,
AGED 53 YEARS,
S/O.FR.KURIAKOSE, VICAR, ST.JOHN'S ORTHODOX SYRIAN
CHURCH, KANNIYATTUNIRAPPU, KUZHIYRA KARA,
THIRUVANIYOOR VILLAGE, PIN-682312
7 K.P.VARGHESE,
AGED 75 YEARS,
S/O.PATHROSE, KATTARATHUMALIL HOUSE, KOKKAPPILLY
KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK,
PIN-682312
8 M.Y.SAJU,
AGED 53 YEARS,
S/O.YOHANNAN, ADVOCATE, MALIECKAL HOUSE,
KOKKAPPILLYKARA, THIRUVANIYOOR VILLAGE,
KUNNATHUNADU TALUK, MANAGER, ST.JOHN'S HIGH SCHOOL,
KANNIYATTUNIRAPPU, PIN-682312
9 REJI.N.K,
AGED 53 YEARS,
NADUMOLAYIL HOUSE, KUZHIYARAKARA, THIRUVANIYOOR
VILLAGE, KUNNATHUANDU TALUK, SECRETARY, ST.JOHN'S
HOSPITAL, KANNIYATTUNIRAPU, PIN-682312
10 JOY,
AGED 56 YEARS,
S/O.KOCHUKUNIU, CHELACHUVATTIL, THIRUVANIYOOR KARA,
THIRUVANIYOOR VILLAGE, PIN-682312
11 YACOB,
AGED 51 YEARS,
S/O.KUNJAPPAN, KEELATH HOUSE, THIRUVANIYOOR KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682312
12 BENNY PAUL,
AGED 46 YEARS,
S/O.PAILY, PATTULLIL HOUSE, THIRUVANIYOOR KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682312
RFA.Nos.541 & 545 OF 2019 6
13 P.V.KURIACHAN,
AGED 74 YEARS,
S/O.VARKEY, PUTHENVEETIL, THIRUVANIYOOR KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682312
14 C.A.THANKACHAN,
AGED 54 YEARS,
S/O.ABRAHAM, CHIRAPPATTU, KIDANGAYAM KARA,
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682305
15 BABU,
AGED 51 YEARS,
S/O.VARGHESE, CHIRAPPATTU HOUSE, KIDAMGAYAM KARA,
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682305
16 V.M.POULOSE,,
AGED 66 YEARS,
S/O.MATHEW, VAZHAKALAYIL, KANAYANNUR VILLAGE,
KANAYANNUR TALUK, PIN-682312
17 ELIAS,
AGED 44 YEARS,
S/O.PAPPY, PARAKULANGARA, KIDAMGAYAM KARA,
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682305
18 GEEVARGHESE,
AGED 78 YEARS,
S/O.YACOB, KOKKATTU HOUSE, KUZHIYARA KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682312
19 T.P.WILSON,
AGED 46 YEARS,
S/O.PAILY, THACHETH HOUSE, KOKKAPPILLY KARA,
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, PIN-
682305
20 JOHN.N.V,
AGED 55 YEARS,
S/O.VARKEY KURIAKO, NEDUMOLAYIL HOUSE,
KANNIYATTUNIRAPPU, KUZHIYARA.P.O, ERNAKULAM
DISTRICT, PIN-682312
(Plaintiff No.3, Defendants 9,19,20&22 died during
the proceedings before the Court below)
R3, R6 BY ADV. SRI.S.SREEKUMAR (SR.)
R3, R6 BY ADV. SRI.P.MARTIN JOSE
R3, R6 BY ADV. SRI.P.PRIJITH
R3, R6 BY ADV. SRI.THOMAS P.KURUVILLA
R3, R6 BY ADV. SMT.HANI P.NAIR
RFA.Nos.541 & 545 OF 2019 7
R3, R6 BY ADV. SHRI.HARIKRISHNAN S.
R3, R6 BY ADV. SRI.MANJUNATH MENON
R3, R6 BY ADV. SRI.AJAY BEN JOSE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
17.01.2020, ALONG WITH RFA.541/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RFA.Nos.541 & 545 OF 2019 8
JUDGMENT
I am considering these two appeals together, since they challenge the same judgment and decree of the Court below.
2. Defendant No.3 in O.S.No.42 of 2003 on the file of the District Court, Ernakulam and defendant No.13 in the said suit have approached this Court by filing R.F.A.No.541 of 2019 and R.F.A.No.545 of 2019 respectively.
3. The suit in question was filed by the plaintiffs with respect to the management and attendant issues of St.John's Orthodox Syrian Church, Kanniyattunirappu, with the following prayers:-
"1. A decree removing defendants 2,3,5 to 22 as trustees, secretary, managing st committee members of 1 defendant church, manager of St.John's High School and Secretary of St.John's Hospital.
2. A decree of perpetual injunction restraining defendants 2,3 and 5 from functioning as trustees, secretary and D8 to D22 from functioning as managing RFA.Nos.541 & 545 OF 2019 9 committee members of the 1st defendant church and D6 and D7 from functioning as the manager and secretary of the St.John's school and St.John's hospital of the 1st defendant church.
3. A decree of mandatory injunction directing the 4th defendant to call for an immediate puthuyogam of the 1 st defendant church and to conduct election of a new managing committee including trustees and secretary of the 1st defendant church and manager of St.John's High School and Secretary of St.John's Hospital in accordance with the 1934 constitution."
4. Pending this suit, the Hon'ble Supreme Court in K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and Others [2017 (3) KLT 261 SC] declared that the management and control of all the constituent churches under the "Malankara Orthodox Syrian Church" will be as per and governed by its 1934 constitution. The Court below therefore, decreed the suit in the following manner:-
1. D2,D3 and D5 to D22 are removed from the posts of trustees, secretary and managing committee members of D1 church, manager of St.John's High School and secretary of St.John's hospital belonging to the church, by a mandatory injunction.
2. D2,D3 and D5 are restrained by a RFA.Nos.541 & 545 OF 2019 10 perpetual injunction from functioning as trustees and secretary and D8 to D22 are restrained by a perpetual injunction from functioning as managing committee members of the first defendant church.
3. D6 and D7 are restrained by a perpetual injunction from functioning as the manager and secretary respectively of St.John's High School and St.John's Hospital belonging to the first defendant church.
4. The 4th defendant vicar is directed to convene a pothuyogam of the first defendant church and conduct elections to the managing committee including the posts of the trustees and secretary of the church, the manager of St.John's school and the secretary of St.John's hospital.
5. The process shall be supervised by Adv.A.Balagopal, the commissioner appointed by this court as per the direction of the Hon'ble High Court. It is made clear that the further role of the commissioner is only the supervision of the election, which as per the 1934 constitution is to be done by the vicar. It is clarified and confirmed that the church and its institutions are liable to be governed under the 1934 constitution of Malankara Orthodox Syrian Church."
5. It is this judgment and decree of the court below which has been assailed by the afore mentioned defendants in these appeals.
6. I have heard Shri.K.Ramakumar, learned Senior Counsel instructed by RFA.Nos.541 & 545 OF 2019 11 Shri.Ramprasad Unni T., learned counsel, appearing for the appellant in R.F.A.No.541 of 2019; Shri.P.Viswanathan, learned Senior Counsel instructed by Shri.Achuth Kylas, learned counsel appearing for the appellant in R.F.A.No.545 of 2019 and Shri.S.Sreekumar, learned Senior Counsel, instructed by Shri.P.Martin Jose, learned counsel appearing for the caveators/ respondents in the appeals.
7. Shri.K.Ramakumar, learned Senior Counsel began his submissions by raising three broad issues: for the first, that, since the third plaintiff, defendants 9,19,20 and 22 had died pending this suit it could not have been decreed and therefore, that it ought to have been dismissed; for the second, that, as is evident from the judgment in question, no issues had been framed by the District Court but it had still gone ahead to RFA.Nos.541 & 545 OF 2019 12 decree the suit and therefore, that the same is without force in law; and for the third, the learned Senior Counsel submitted that the decree, to the extent to which the Vicar of the church-namely, defendant No.4-has been allowed to conduct the elections with the learned Advocate Commissioner appointed earlier being a mere spectator, goes against the spirit of two earlier judgments of this Court, namely in W.P(C)No.3720 of 2006 and W.P(C)No.3497 of 2005.
8. The learned Senior Counsel then continued to submit that the District Court had erred in issuing the decree allowing the Vicar of the church to conduct elections because, in the earlier judgment of this Court in W.P(C)No.3497 of 2005, it was specifically directed that an Advocate Commissioner will be appointed for the purpose of conduct of the elections and for publication of the RFA.Nos.541 & 545 OF 2019 13 voters list; and that since the Hon'ble Supreme Court has not, in any manner, declared the mode of conduct of elections in K.S.Varghese (Supra), the District Court could not have by-passed the directions of this Court and allowed the Vicar to conduct elections. He says that this has caused serious vitiation in the conduct of elections post the decree, because the Vicar has illegally eliminated 1600 members who were eligible to cast their votes and has thus virtually enabled his own persons to be elected to the Managing Committee of the church. The learned Senior Counsel, thus, vehemently prayed that the judgment and decree be set aside.
9.Shri.P.Viswanathan, learned Senior Counsel appearing for the appellant in R.F.A.No.545/2019, adopted most of the afore submissions of Shri.K.Ramakumar, however, adding to it by saying that, even RFA.Nos.541 & 545 OF 2019 14 the 1934 constitution of the Malankara Orthodox Syrian Church does not specifically authorize the Vicar to conduct elections and that there is a lacunae in the said constitution with respect to these aspects. He says that his client, as also the other defendants, had specifically pleaded before the Court below that any elections to be conducted by the Vicar would not be proper and fair, since he would manipulate the entire process and therefore, that certain earlier directions had been issued by the same Court as to the manner in which the electoral roll had to be finalised and that the learned Advocate Commissioner was also permitted to allow the defendants to make confession before the Vicar, so as to enable their names to be included in the voters list.
10. Shri.P.Viswanathan then alleges that the Court below, however, while RFA.Nos.541 & 545 OF 2019 15 issuing the impugned judgment and decree wholly disregarded its own earlier directions and has allowed the Vicar to conduct the elections; and thereby that in the elections so conducted, his client and various others-totaling 1600 persons-were unlawfully excluded. He says that this clearly has established their apprehensions to be credible and therefore, that the decree and judgment impugned in these appeals are liable to be set aside.
11. Shri.S.Sreekumar, learned Senior Counsel appearing on behalf of the caveators/respondents in the appeals, in opposition to the afore, submitted that the suit was instituted under Order 1 Rule 8 of the CPC, after obtaining the leave of the Court under Section 92 thereof; and therefore, the death of the 3rd plaintiff or defendants 9,19,20 and 22 during the pendancy of the suit would be of no RFA.Nos.541 & 545 OF 2019 16 consequence and he relied on the judgments of this Court in C.R.Ramakrishnan v. Raman and Others [1983 KHC 14] and Charan Singh and Another v. Darshan Singh and Others [1975 KHC 486] in support of his contention.
12. As regards the assertion of Shri.K.Ramakumar that no issues had been framed in the suit, Shri.S.Sreekumar submitted that this would be of no consequence at all in this case, because the sole question that had to be decided by the Court below was whether the 1934 constitution would govern the church in question and nothing else. He says that, therefore, the only issue to be decided by the court below was whether the 1934 constitution applies and therefore, that the absence of formal issues being framed would not cause any difference in the nature of the decree or its validity. RFA.Nos.541 & 545 OF 2019 17
13. On the aspects projected by the learned Senior Counsel appearing for the appellants, relating to the power of Vicar to conduct elections, Shri.S.Sreekumar submitted that going by the 1934 constitution, particularly Clauses 12,15 and 17 thereof, it is only the Vicar who has been authorized to call for the general body meeting to finalize the voters list; to publish it and to finally conduct elections. He says that this is manifest from the 1934 constitution which specifically mandates that the Vicar is the Ex-officio President of the Parish Assembly and therefore, that he is the only person authorized to conduct elections. He then submitted that, in any event, there is no prohibition in the 1934 constitution against such power being exercised by the Vicar. He also vehemently opposed the submissions of Sri.K.Ramakumar and Sri.P.Viswanathan, that 1600 eligible RFA.Nos.541 & 545 OF 2019 18 persons had been excluded from the voters list, asserting that these allegations are wholly baseless and thus prays that these appeals be dismissed.
14. I have considered the afore submissions made on behalf of the parties very anxiously and I have also examined the documents and evidence available on record and also the various judgments relied upon by the parties.
15. It is now unnecessary for me to restate that management and control of the Church in question-concededly it being a constituent of the Malankara Orthodox Syrian Church-is to be done only as per the 1934 Constitution, going by the judgment of the Hon'ble Supreme Court in P.M.A.Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001] and Varghese v. St.Peter's and Paul's Syrian Orthodox Church [2017 (3) KLT 261 SC]. In fact, RFA.Nos.541 & 545 OF 2019 19 neither Shri.K.Ramakumar nor Shri.P. Viswanathan have impelled a contention that said Constitution does not apply to the Church or that its management and control have to be exercised in any other manner. I, therefore, do not need to labour any further on that aspect.
16. From such perspective, it becomes ineluctable that direction numbers 1,2 and 3 in the decree are incapable of any further contest, since they are only axiomatic consequences of the declaration of law by the Hon'ble Supreme Court, that the Church will be governed and managed only under the 1934 Constitution.
17. The only surviving question which is really relevant for my consideration is whether the directions in the decree, that the 4th defendant-Vicar will conduct the elections and that the Advocate Commissioner will only supervise the said RFA.Nos.541 & 545 OF 2019 20 process, are valid or otherwise.
18. In support of the contention that the Vicar could not have been allowed to conduct the elections, Shri.K.Ramakumar and Shri.P.Viswanathan rely on certain directions issued by a learned Judge of this Court in W.P(C)No.3497 of 2005, which arose from an issue as to the electricity connection to the Church in question.
19. The learned Judge, after assessing the factual circumstances involved, came to the conclusion that the Church is to be governed and managed by the 1934 Constitution and then ordered for conduct of elections through an Advocate Receiver. The relevant portion of the directions in the said judgment is available in Paragraph 13 of it, which reads as under:-
" Both sides want an election to the Managing Committee of the church to be conducted in a fair and democratic way. Taking the cue from the earlier judgment RFA.Nos.541 & 545 OF 2019 21 dated 29-2-1988 by this Court in C.M.A.42/1985 I direct that the court below shall appoint a Receiver (who shall be a person preferably a non-Christian of proven integrity) for convening the general body meeting of the church for the purpose of conducting election to the Managing Committee of the church in accordance with the 1934 constitution. The petitioners and followers of their group will be entitled to participate in the election only if they swear allegiance to the 1934 Constitution. A copy of the judgment of this Court in C.M.A.42/1985 shall be forwarded to the Court below for guidance. After the conduct of the election the court below shall dispose of O.S.42/2003 on that basis. No dispute regarding the election to be conducted hereafter shall be entertained by the court below as a continuation of the proceedings in O.S.42/2003. Since pursuant to Ext.P6 order dated 30.9.2004 passed by the Court below, this Court had issued certain directions in the judgment dated 17-11-2004 in W.P(C)No.29984/04 (Ext.P7 judgment) and also since the matter is pending consideration before this Court in C.C.C.1693/04, Ext.P10 order refusing to appoint an Advocate Commissioner as prayed for by the petitioners, cannot be faulted. It is not for an Advocate Commissioner to evaluate the technical soundness of the electric wiring etc. Ext.P10 order is accordingly confirmed."
20. The appellants contend that these directions have been completely jettisoned by the District Court while issuing the judgment and decree impugned in these appeals and therefore, that same is vitiated in law.
21. That said, it is also without RFA.Nos.541 & 545 OF 2019 22 contest that the judgment afore extracted was delivered by the learned Judge of this Court before the Supreme Court had delivered the judgment in Varghese (Supra).
22. Thus, after the Supreme Court declared the law that only the 1934 Constitution would apply as regards the management and control of the Church in question, obviously the directions as above issued by this Court would have to be tested against the provisions of the said Constitution to obtain an answer as to whether it was proper for this Court to have ordered appointment of an Advocate Commissioner for the purpose of publication of the voters list and conduct of the elections.
23. Contextually, at this time, I must also advert to the submissions of Shri.P.Viswanathan, learned Senior RFA.Nos.541 & 545 OF 2019 23 Counsel, with respect to certain earlier directions that had been issued by the District Court itself, based on an interim report of the Advocate Commissioner, dated 24/09/2019. It appears that the Advocate Commissioner had brought to the notice of the said Court that some members were apprehending that they would not be allowed to take part in the election process and that they would be excluded from the voters list merely because they had not offered a confession or accepted a sacrament, as is required under the 1934 Constitution, for being included in the electoral roll. It transpires that the District Court thereupon issued an order to the effect that the members who seek to make confession can submit an application before the Advocate Commissioner and that the Commissioner must then refer them to the Vicar for further action and their RFA.Nos.541 & 545 OF 2019 24 inclusion in the electoral roll. Shri.P.Viswanathan vehemently asserts that in spite of these directions, no action had been taken by defendant No.4-Vicar and that while the judgment and decree impugned were issued, the Trial Court had completely disregarded these directions.
24. As I have already indicated above, the only issue that was germane for the consideration of the District Court was as to the manner in which the management and control of the Church had to be ordered. Going by the judgment and decree now delivered, it is clear that the District Court has confined itself within the parameters as are stipulated by the Hon'ble Supreme Court in Varghese (Supra) and it has declared that the Church and its institutions shall be governed by the 1934 Constitution. As a necessary consequence thereof, the RFA.Nos.541 & 545 OF 2019 25 District Court has also directed that elections to the "Pothuyogam" (General Body) shall be conducted by the Vicar and supervised by the Advocate Commissioner. It is these directions, in fact, which are the primary bone of contention so to speak, between the parties, since it is evident that other contentions of the appellants are intended to support this, in their endeavour to have the judgment and decree set aside.
25. Before I answer this, I deem it appropriate to indite my opinion on the other issues raised by Shri.K.Ramakumar which have already been recorded above.
26. As regards the death of 3rd plaintiff and defendants 9,12,20 and 22 pending the suit is concerned, I find favour with the submissions of Shri.S.Sreekumar, learned Senior Counsel, that, since the suit in question was one RFA.Nos.541 & 545 OF 2019 26 instituted under Order I Rule 8, of the CPC with leave of the Court under Section 92 thereof, 'death of one of the plaintiffs or some of the defendants would not cause the suit to abate and therefore, the Court below was completely justified in issuing the judgment and decree, notwithstanding the death of such parties.'
27. Coming to the question of issues not being framed in the suit, it is evident from the pleadings on record and the contest between the parties, that the sole issue before the Court was whether the Church is to be governed by the 1934 Constitution or by the 2002 Constitution. While the defendants contended that the Church had to be managed under the 2002 Constitution, it was the specific case of the plaintiffs that only the 1934 Constitution would apply. Obviously, therefore, the sole issue that had to be RFA.Nos.541 & 545 OF 2019 27 framed by the Court was this; and resultantly, absence of formal framing of issues in the singular circumstances of this case, would be of no consequence at all, since even if issues had been framed, it would have been only this and nothing else. I, therefore, cannot find the contentions of Shri.K.Ramakumar, learned Senior Counsel on these aspects to be worthy of the favour of this Court.
28. Finally, that leaves me with consideration of the question as to whether the directions in the decree and judgment, allowing the Vicar to conduct elections, are valid or otherwise.
29. As rightly stated by Shri.S.Sreekumar, the decree only says that the elections to the Managing Committee of the Church shall be conducted under the 1934 Constitution. This, I am certain, cannot be challenged RFA.Nos.541 & 545 OF 2019 28 by the appellants; and in fact, Shri.K.Ramakumar submits that his clients have no contest against this. Obviously, therefore, the only point of divergence between the parties is as to the conduct of elections by the Vicar and whether he is authorized or empowered to do so under the 1934 Constitution.
30. Going by the provisions of the 1934 Constitution, it is luculent from Clause 12 thereof that the Vicar shall be the person authorized to call for the "Pothuyogam" (General Body) and that he shall publish the voters list of all the eligible members in the manner as provided therein. Further, he is also sanctioned to be the President of the Parish Assembly, which has the right to manage the Church, to remove employees, to propose and pass the budget, to audit accounts and such other as per Clause 17 of the said Constitution.
RFA.Nos.541 & 545 OF 2019 29
31. In the afore background, I posed a pointed question to Shri.P. Viswanathan, learned Senior Counsel, who conceded that there is no express prohibition in the 1934 Constitution in the Vicar conducting the elections, but he contended that there is no specific empowerment for this either. Thus, according him, when the said Constitution is silent as to who shall conduct the elections, it was upto the Court to put in place a modality under which it could have been conducted and says, drawing power from the submissions of Shri.K.Ramakumar, that the Advocate Commissioner ought to have been directed to conduct elections, so that he could have done it fairly and freely, which attributes are lacking in the process conducted by the Vicar, manifest from the fact that he has now excluded 1600 people illegally. Added to this contention, RFA.Nos.541 & 545 OF 2019 30 Shri.P.Viswanathan further submitted that, as is clear from the interim report of the Advocate Commissioner, dated 24/09/2019, placed before the Court below, even though his client and various other defendants tried to offer confession before defendant-No.4 Vicar, it was not allowed and therefore, that they were excluded from the voters list illegally.
32. When I evaluate the submissions as afore, I must immediately bear in mind that what is being argued before me at this stage is the events that happened post the decree. The specific allegation is that the defendants had,even when the suit was pending, made an apprehension that if an election is allowed to be conducted by the Vicar, it will be vitiated and therefore, that the Trial Court ought to have made sufficient provisions for the same. This being so, RFA.Nos.541 & 545 OF 2019 31 it is unequivocally admitted by the appellants that elections were conducted only after the decree had been issued, even though in the afore mentioned earlier writ petition, namely W.P(C)No.3497 of 2005, a learned Judge of this Court had directed elections to be conducted and the suit to be disposed of in such terms. However, since the elections had not been conducted even at the time when this judgment and decree were delivered, the Court below, following the dictates of the Hon'ble Supreme Court in Varghese (Supra), ordered that elections shall be conducted by the Vicar under the provisions of the 1934 Constitution.
33. Therefore, the essential question surviving is whether the Vicar is entitled as per the 1934 Constitution to conduct elections and whether the findings of the District Court with RFA.Nos.541 & 545 OF 2019 32 respect to such competence is, in any manner, in error.
34. As already been seen above, various provisions of 1934 Constitution enjoin the Vicar to convene the "Pothuyogam", to prepare and publish the electoral roll and to ensure that a managing committee is placed in office. It is true that the Constitution does not specifically say that the Vicar must conduct the elections, but from a composite reading of the various provisions of the constitution, it is obvious that this is a power which is implicit and to be read as part of the competence of the Vicar, particularly, because it is conceded before me by both Shri.K.Ramakumar and Shri.P.Viswanathan, learned Senior Counsel, that no other person or entity has been given that power under the said Constitution. RFA.Nos.541 & 545 OF 2019 33
35. It is, therefore, ineluctable that, going by the 1934 Constitution, it is only the Vicar who could have conducted the elections and who could have taken all steps for the same.
36. Axiomatically, the Court below has acted correctly in allowing the elections to be conducted by the Vicar, to be supervised by the Advocate Commissioner, so as to ensure that the provisions of the 1934 Constitution are in no manner violated.
37. That said, as is evident from the narrative of contentions above, the defendants are now contending that they were excluded from the elections conducted by the Vicar subsequent to the decree. I fail to understand how the judgment and decree can be challenged on these contentions, since, even if the Vicar had conducted the elections RFA.Nos.541 & 545 OF 2019 34 contrary to the provisions of 1934 Constitution, the defendants ought to have challenged the same, invoking remedies, as may be available to them; and consequently, I see no reason why the judgment and decree needed to have been challenged at all. As I have already said above, the allegations made in these appeals are relating to post-decree events and no where do the appellants assert that, as per the 1934 Constitution, the elections are mandated to be conducted only by an Advocate Commissioner.
In the afore circumstances, I find no reason to interfere with the judgment and decree assailed herein; and to thus dismiss these appeals; however, without making any order as to costs, taking note of the singular circumstances involved and noticed herein.
RFA.Nos.541 & 545 OF 2019 35
It is so ordered.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/25.1.2020